Sanjay Bhanubhai Makwana vs State Of Gujarat
2021 Latest Caselaw 242 Guj

       C/MCA/750/2019                                    IA ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
            In R/MISC. CIVIL APPLICATION NO. 750 of 2019
         In R/SPECIAL CIVIL APPLICATION NO. 4439 of 2017
                                With
     MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
            In R/MISC. CIVIL APPLICATION NO. 468 of 2020
                                 In
           SPECIAL CIVIL APPLICATION NO. 11048 of 2019
                                With
     MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
            In R/MISC. CIVIL APPLICATION NO. 902 of 2019
                                 In
           SPECIAL CIVIL APPLICATION NO. 15773 of 2018
                                With
     MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
            In R/MISC. CIVIL APPLICATION NO. 471 of 2020
                                 In
           SPECIAL CIVIL APPLICATION NO. 11067 of 2019
                                With
     MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
            In R/MISC. CIVIL APPLICATION NO. 509 of 2020
                                 In
           SPECIAL CIVIL APPLICATION NO. 19885 of 2018
==========================================================

CHETAN JAYANTILAL RAJGOR Versus SUNAINABEN TOMAR, IAS ========================================================== Appearance:

for the PETITIONER(s) No. MR GAURAV K MEHTA for the PETITIONER(s) No. NOTICE SERVED for the RESPONDENT(s) No. NOTICE UNSERVED for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE N.V.ANJARIA

Date : 08/01/2021

COMMON IA ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

C/MCA/750/2019 IA ORDER

1. This Court passed a detailed order on 04.12.2020, which reads thus:

1. This Court on 01.10.2020 passed the following order;

"Heard learned senior advocate Mr.H.M. Parikh with learned advocate Mr.Hitesh Makwana for the applicant and learned Assistant Government Pleader Ms.Maithili Mehta for the respondent.

2. On 17th September, 2020 following order was passed by us.

"Heard learned senior advocate Mr.H.M. Parikh assisted by learned advocate Mr.Hitesh Makwana for the applicants and learned Assistant Government Pleader Mr.Hardik Mehta for the respondents.

2. While in the earlier orders passed in the present petition it was observed that Letters Patent Appeal preferred by the State against the order brought under contempt, came to be dismissed, today learned Assistant Government Pleader submitted that the State has initiated process of approaching the Apex Court by way of Special Leave Petition.He, therefore, prayed for time.

3. Our attention was drawn that in respect of Miscellaneous Civil Application No.750 of 2019 in the similar issue of compliance of the similar order is involved, order came to be passed on 28th August, 2020 whereby we required the respondents to comply with the directions within stipulated time in absence of any appropriate orders obtained from the higher court.

             4.        In   the   aforesaid      view   and      since        the





 C/MCA/750/2019                         IA ORDER

State wants to carry the challenge before the Supreme Court, in the totality of the facts and circumstances, we grant time upto 30th September, 2020, before which date the directions in the order brought under contempt shall be complied with unless appropriate orders are obtained from the Apex Court. 5. The present matters to come up next on 01st October, 2020."

3. Today, learned Assistant Government Pleader Ms.Vrunda Shah admits that Letters Patent Appeal against the directions sought to be complied with in the order has been dismissed and that the State is not going to file any further challenge to the said order. In other words, the directions in judgment dated 13th August, 2019 passed in Special Civil Application No.11048 of 2019 are finally required to be complied with.

4. Learned Assistant Government Pleader states on instructions that reinstatement of the applicant shall be done on the original post as directed within one week from today, whereas consequential benefits of back wages etc. shall be paid within 15 days from today.

5. In view of the above statement, application is disposed of. Notice is discharged. "

2. Thereafter, the order passed by this Court on 06.11.2020, reads thus:

"1. We have heard learned Senior Advocate Mr. H.M.Parikh, who has fervently urged that not only there is the violation of the base order, but also of the order of the contempt Bench dated 01.10.2020, when the learned Assistant Government Pleader had made a categorical statement on instructions that there is not going to be any further

C/MCA/750/2019 IA ORDER

challenge to the order of the Letters Patent Bench. Reinstatement of the applicant within one week and the consequential benefits within two weeks had been ensured, instead the State has chosen to prefer the Special Leave Petition without approaching this Court and seeking the permission for extension.

2. Issue notice returnable on 04.12.2020. Let the compliance be made, If no order is obtained within one week from today, respondents No.1 and 2 shall remain present."

3. Today, in due compliance of the Court's directions, Mr. Kamal Dayani, Addl. Chief Secretary, Port and Transport Department, has remained present before us through video conference.

4. We have heard, extensively, learned Advocate, Mr. Oza, with learned Advocate Mr. Jeet Patel and learned Advocate, Mr. Gaurav Mehta, as well as learned Advocate, Mr. H.M. Parikh, in MCA No. 1 of 2020 in MCA 468 & 471 of 2020. Learned AGP, Ms. M.D. Mehta, also has made her submissions elaborately and also has heavily relied on the affidavit-in-reply filed by the Addl. Chief Secretary.

4.1 Without elaborating the submissions made extensively, by both the sides, we note that there is non-compliance of the directions issued by this Court, till date. The affidavit filed by the Additional Chief Secretary indicates that the filing of the SLPs (Para-9 of this affidavit indicates four numbers of SLPs). It is also shared by learned AGP, Ms. Mehta, that a note has been moved in SLP No. 13220 of 2020 by the Advocate on Record on 16.11.2020 with a request to move the matter in the first week

C/MCA/750/2019 IA ORDER

of December, 2020. A copy of the same has been received during the course of hearing today by the learned Advocate on Record of the petitioner. It is fervently urged before this Court by the learned AGP, Ms.Mehta, that there is no intent to commit any contempt of the order of the Court and unconditional apology also has been tendered for and on behalf of the State. Addl. Chief Secretary since remained present, opportunity also was availed to him and he has urged that there was no intent to commit contempt and unconditional apology also has been tendered. It is sought to be explained as to how, after once having stated before this Court on the strength of the opinion of the legal department on 01.10.2020 that the State is not likely to challenge the order of the Appellate Bench of this court before the Apex Court, the SLP has been preferred by the State. However, considering the far- reaching implications, the government has exercised its powers to approach the Apex Court against the judgment and order of the Appellate Bench, considering the gravity of the issue, despite the specific opinion tendered by the Legal Department. It is essentially sought to be emphasized that there was no intent to mislead or misguide the Court while disclosing the intent to give a quietus to the issue once the Appellate Court concluded, what developed subsequently is the exercise of prerogative of the State to take independent view in accordance with the rules of Business where predominantly, huge financial implications to the exchequer had weighed with the authority.

4.2 Undoubtedly,every litigant is empowered legally to question the decision of the courts in hierarchy till finality is attained by the wisdom of the Apex Court of the Country and none could possibly even raise any challenge to the right to litigate before the court of law. What is vital for

C/MCA/750/2019 IA ORDER

the litigant is to observe the law of limitation and adherence to the scheduled prescribed for resorting to such right. Directions issued by any court are otherwise sacrosanct and until stayed by the higher forum, they command the authority and necessarily deserve due observance by the parties, more so, when the State is litigating whose function is also to ensure due implementation and respect for the command of law.

4.3 It is a matter of record that after receiving permission for filing SLP for challenging the order of the Appellate Bench of this Court, at no stage, the State has intimated this Court of its intent to approach the Apex court on this aspect for the reasons enlisted in the affidavit although being aware of pendency of these matters and importance of statement made before this court by the learned AGP at the behest of the State on receipt of instructions. It is only today, for the first time, in the affidavit filed by the Addl. Chief Secretary that these details have been tendered before this Court, that too, without compliance,partial or full. The least that could have been expected from the State was to either comply or to apprise this court of the subsequent developments.

5. We have, since, heard the learned Advocates on both the sides on the aspect of contempt, we deem it appropriate not to pass any order, today. Let this matter be posted for hearing on 15TH DECEMBER, 2020. What has weighed with this Court for not passing the order has two fold reasons; (1) a note is moved by the Advocate on Record of the State before the Apex Court to urgently circulate the matter for hearing in the first week of December, 2020 and (2) two of the AORs of the State were down with the Covid-19 virus, hampering the possibility of any follow up

C/MCA/750/2019 IA ORDER

actions. However, according to the leaned AGP, Ms. Mehta, now one of them is no longer quarantined, and therefore, immediately in the next week, it will be feasible to act upon the note preferred before the Apex Court. Since, there are about 5 SLPS which have been moved before the Apex Court, as directed by this Bench earlier, UNLESS some directions / orders obtained from the Apex Court, there shall be a requirement of the total and full COMPLIANCE of the order of this court by 15TH DECEMBER, 2020.

6. All the matters to be listed for hearing on 15TH DECEMBER, 2020."

2. Today, we are given to understand by the learned Advocates appearing for the respective parties that Special Leave Petition (Civil) No. 13220 of 2020, arising out of the judgment and order of this Court, Dated: 24.07.2020, in Letters Patent Appeal No. 1596 of 2019 of this Court, is now ordered to be tagged with Special Leave Petition (Civil) No. 14124 of 2012, which is a larger group of matters, and is coming up for hearing before the Apex Court on 11.01.2021.

2.1 So far as Misc. Civil Application No. 902 of 2019 is concerned, the filing of SLP before the Apex Court is in the process.

3. The parties, since, are already before the Apex Court, where, they are not only agitating their rights but they also have moved a note specifying their grievances, and therefore, no purpose is likely to be served by continuing these petitions for contempt.

4. Resultantly, all these matters stand DISPOSED OF, accordingly. While so doing, the LIBERTY is granted in favour of the applicants, if, no order is specifically passed by the Apex Court at the interim stage, which would necessitate REVIVAL of this matter, the same shall be

C/MCA/750/2019 IA ORDER

PERMITTED. In absence of any such order also, in wake of any rejection of the request to grant stay of the operation of the judgment and order of this Court, the parties MAY CHOSE to make such a request, if, specifically permitted by the Apex Court.

(SONIA GOKANI, J)

(N.V.ANJARIA, J) UMESH/-